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February 14, 2019 - By Patricia Elia & Julia White

When Will A Condominium Corporation Be Held Liable For Invasion Of Privacy?

In a recent decision, Jane Doe 72511 v Morgan,[1] the Ontario Superior Court recognized, for a second time since Jane Doe 464533 v ND,[2] the elements of the tort of public disclosure of embarrassing private facts. The plaintiff, Jane Doe, was in a relationship with the defendant, Nicholas, who physically and mentally abused her in the presence of his parents (the “Morgans”) whose house they lived at. The Morgans were coherently aware of the abuse taking place on their premises, but did nothing to intervene. As a form of revenge for calling the police on him, Nicholas posted a sexually explicit video, which clearly showed Jane’s face, on a pornography website. The video was viewed at least 60,000 times and was likely shared and downloaded many more times.

The Court ultimately concluded that Nicholas was liable to Jane for his public disclosure of her private information and that his parents owed Jane a duty under the Occupiers’ Liability Act (the “Act”),[3] and were liable for negligence because of the emotional and physical abuse that occurred on their premises (which they failed to stop). The Court also considered the Morgans’ liability under the Act for the video because it was posted using their computer, while in their home, but ultimately determined that the Morgans were unaware of the posting of the video and that the action was not reasonably foreseeable; therefore, they should not be held responsible.

In arriving at its final decision, the Court went through the three-prong test for negligence:

(1) Did the Morgans owe Jane a duty of care?

The Court first looked to the provisions set out in the Act to determine whether the parents met the definition of an occupier. Section 1 of the Act defines an occupier as either “a person who is in physical possession of premises” or “a person who has responsibility for and control over the condition of the premises or the activities there carried on, or control over persons allowed to enter the premises”. The Morgans were the owners of the premises and had both responsibility for and control over the premises itself, the activities carried out thereon, and the persons allowed to enter the premises. As such, the Morgans were the occupiers of the premises.

Under subsection 3(1), an occupier: “owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises”. This duty is subject to an exception under subsection 4(1) of the Act, which states that the duty of care does not apply where risks are willingly assumed by persons who enter the premises. This means, for the parents’ duty to be nullified under the Act, Jane Doe would have been required to accept that Nicholas would physically harm her and that she would have no right to sue him or his parents for any resulting injuries. The Court cited the Supreme Court of Canada decision R v Jobidon where the court ruled that a person cannot consent to intentional application of force causing serious hurt or non-trivial body harm, and concluded that Jane Doe could not have voluntarily assumed the risk that Nicholas would physically harm her while on the parents’ premises.[4]

The Morgans owed Jane Doe a duty of care as occupiers of the premises.

(2) Did the Morgans breach their duty of care?

The Court found that the Morgans were clearly aware of Nicholas’ abuse of Jane Doe, which occurred in their home, because they saw the actions being carried out and they saw Jane Doe’s bruises and injuries. In light of this, the Court determined that it was reasonably foreseeable to the Morgans that Nicholas would “assault and batter” Jane Doe, as he had in the past. The Morgans were therefore negligent and breached their duty of care as occupiers under the Act.

(3) Did Jane sustain injuries as a result of the Morgans’ negligence?

The Court found that if the Morgans had intervened, Jane would not have suffered physical and emotional harm by Nicholas; therefore, they were found jointly liable, with Nicholas, for Jane’s damages.

What does this mean for condominiums?

Under section 26 of the Condominium Act, 1998, the corporation is deemed to be the occupier of the common elements for the purposes of determining liability resulting from a breach of duty of an occupier of land.[5] This decision raises questions about when a condominium corporation, in their role as an occupier, will be held liable for actions that are carried out on the common elements. It also highlights the embedded risk of the condominium when unit owners are actively violating the law on the condominium premises within their unit.

Determining the answers to these questions becomes more relevant as the prevalence and growth of human trafficking in condominiums, specifically in Toronto, through the use of short-term rental arrangements such as Airbnb, which give rise to risk that must be managed carefully. Information on Ontario's Strategy to End Human Trafficking can be found at the following link: https://www.mcss.gov.on.ca/en/mcss/programs/humantrafficking/index.aspx.

Condominiums should consider adopting a pro-active approach to combatting this kind of activity in order to ensure the safety and security of its owners and residents. Condominiums which embraces short term rentals need to think about the issues associated with being the occupier for liability purposes and ensuring that the indemnity provisions in the declaration are, at a minimum, well-worded and that the right policies and procedures are in place so that the full extent of sections such as 117 and 119 of the Act are readily enforceable. The pro-active addressing of risk, including with respect to the use of drugs and alcohol and the associated personal injury and property damage risks can also help reduce insurance claims and thereby manage costs.

Short-term rental arrangements can be an unknown risk because they are purposely hidden from management and security personnel. Unit owners wishing to circumvent the rules, create explicit instructions for guests not to speak with management or security, pretend they are not short-term renters, and refrain from mentioning Airbnb altogether. However, if a condominium allows short-term rental, awareness of risk both at the Condominium Corporation level and at the Unit Owner level can minimize risk. The purpose of policies and procedure is to avoid the creation of higher risks for unit owners and their guests living on-site, specifically where the condominium community is not made aware of unauthorized trespassers and therefore cannot be precautionary. To reduce their risk of liability, condominium corporations should implement policies and procedures that either restrict the use of the common elements and the ability of owners to use their units for short-term rentals, and/or provide a process for management and owners to follow to make certain practices more safe.

This decision seems to provide us with more questions than answers. We will leave you to ponder the following…

What can a corporation include in its policies to prevent suspicious criminal activity from taking place within the units?

If a unit owner engages in short-term rentals, what should a unit owner do to ensure that their unit/property is not being used for criminal activity?

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.